Duke  University  Libraries 


OF     THE 

COMMITTEE  ON   THE   JUDTCTARY 

UPON  MAllTIAL  LAW. 


The  Committee  on  the  Judiciary,  having  had  under  consideration 
several  resolutions  and  bills,  referred  to  them  by  the  House,  relating 
to  martial  law,  respectfully  report : 

A  few  days  after  this  Congress  first  assembled  it  enacted  that 
"during  the  present  invasion  of  the  Confederate  States,  the  President 
shall  have  power  to  suspend  the  privilege  of  the  writ  of  habeas 
corpus  in  such  cities,  towns  and  military  districts  as  shall,  in  his  judg- 
ment, be  in  such  danger  of  attack  by  the  enemy  as  to  require  the  de- 
claration of  martial  law."  This  is  the  entire  act  of  February  27, 
1862.  It  either  assumed  that  the  President  had  authority,  without 
the  aid  of  legislation  to  declare  martial  law,  or  it  was  designed  to 
confer  that  authority  by  very  vague  and  imperfect  legislation. 

The  President  (who  has  used  this  power  with  exemplary  modera- 
tion) proceeded  to  declare  martial  law  in  several  places  threatened 
Avith  invasion,  and  it  was  soon  discovered  to  have  effects,  as  then  ad- 
ministered, far  beyond  a  mere  suspension  of  the  writ  of  habeas  corpus. 
It  w^as  found,  also,  that  the  suspension  of  that  writ  by  the  act  of  Con- 
gress had  been  too  general.  To  remedy  the  latter  inconvenience  and 
to  limit  the  duration  of  martial  law,  another  act  was  passed  by  Con- 
gress, on  the  19th  day  of  April,  1862,  confining  the  suspension  of 
the  writ  of  habeas  corpus  •'  to  arrests  made  by  the  authorities  of  the 
Confederate  Government  or  for  offences  against  the  same,''  and  limit- 
ing the  duration  of  the  former  act  to  a  period  ending  '*  thirty  days 
after  the  next  meeting  of  Congress,"  a  period  now  about  to  expire. 

Since  the  latter  act  was  passed  martial  law  has  been  declared  in 
several  districts  by  the  President  and  by  Generals  comm.anding  armies  ; 
but  these  declarations  of  the  Generals  have  been  annulled  by  the  Pre- 
sident as  unauthorized.  They  have  served  to  call  the  attention  of 
Congress  and  the  country  anew^  to  the  subject  of  martial  law.  The 
vast  extent  of  power  assumed,  in  some  of  these  instances,  to  have 
been  conferred  by  military  officers  on  themselves  by  a  declaration  of 
martial  law,  has  challenged  a  more  thorough  investigation  of  the  na- 
ture and  foundation  of  martial  law  than  may  have  been  deemed  practica- 
ble where,  in   a  season   of  great   public  danger.  Congress  first  legis- 


lated  on  the  subject.     It  was  nnt  then   referred  to  n  committee  by  the 
House. 

Martial  law  was  part  of  the  ancient  common  law  of  England,  but  its 
pristine  vigor  has  long  since  been  paralyzed  in  that  country  by  the 
progress  of  liberty.  In  the  beginning  it  was  the  law  administered  in 
the  courts  held  by  the  Lord  High  Constable  or  by  the  Earl  Marshal 
of  England  and  his  subordinates  the  provost  marshals  and  lieutenants 
of  counties.  The  law  itself  was  commonly  described  by  reference  to 
the  jurisdiction  of  the  court  of  the  marshal.  That  jurisdiction  em- 
braced matters  of  v/ar  and  chivalry  and  contracts  made  beyond  sea 
concerning  arms.  Beyond  these  subjects  the  jurisdiction  of  the  mar- 
shal's court  was  disputed,  and,  indeed,  was  forbidden  b\^  statute  in  the 
13th  year  of  the  reign  of  Richard  II. 

The  methods  of  procedure  in  these  courts  were  summary,  excluding 
the  guarded  modes  of  trial  observed  in  the  ordinary  civil  tribunals. 
In  the  adjudication  of  questions  arising  in  the  army  they  proceeded 
upon  the  axiom  that  the  power  of  the  King  was  absolute  over  the 
army  in  the  field,  and  over  the  life  of  every  person  ^attached  to  the 
army  in  time  of  Avar.  This  power  was  not  controlled  by  any  law. 
The  King  (it  is  said)  might  put  to  death,  at  w^ill,  any  soldier  in  the 
field.  His  commands  were  law  to  the  army  and  to  the  courts  of  the 
marshals.  Thus,  in  eff'ect,  absolute  power,  administered  by  military 
courts  in  summary  proceedings,  constituted  martial  law. 

No  authority  to  extend  martial  law  over  persons  not  connected  with 
the  army  was  incident  to  military  command.  But  such  authority  Avas 
claimed  to  belong  to  the  King,  at  least  in  times  of  war  and  insurrec- 
tion, as  one  of  his  royal  prerogatives  for  governing  the  nation,  as  a 
political  no  less  than  as  a  military  power  of  the  crown.  But  whether, 
according  to  the  ancient  common  law,  it  Avas  a  prerogative  of  the 
King  to  cause  martial  law  to  be  put  in  force  in  time  of  peace,  even  as  to 
the  army  ;  or  to  extend  it,  at  any  time,  over  civilians  ;  these  and  other 
questions  of  like  nature  Avere  long  and  severely  contested.  Usually 
the  pretensions  and  practices  of  arbitrary  monarchs  in  turbulent  times 
Tvere  in  contrast  Avith  the  unheeded  opinions  of  courts  and  jurists. 
But  it  was  generally  admitted  by  those  Avho  condemned  as  Avell  as 
those  Avho  invoked  its  exercise,  that  martial  laAV,  whenever  and  Avherever 
it  could  lawfully  prevail,  had  the  eft'ect  to  institute  arbitrary  poAver 
and  the  jurisdiction  of  courts  martial. 

During  the  reign  of  Charles  I.  the  Parliament,  by  the  Petition  of 
Right,  asserted  the  ancient  liberties  of  the  people  of  England,  and, 
among  other  grievances,  denounced  the  abuse  of  martial  hiAv  ;  alleging 
that  persons  not  connected  with  the  army  (in  common  Avith  soldiers) 
had  been  tried  by  the  course  of  martial  laAV  under  commissions  from 
the  croAvn ;  and  affirming  that  this  Avas  unlawful.  After  the  long 
struggles  Avhich  marked  the  17th  century,  the  Bill  of  Rights  and  the 
subsequent  practice  of  Parliament  placed  the  rights  of  the  subject,  in 
this  regard,  on  still  firmer  and  plainer  ground. 

Martial  law,  as  applicable  to  the  army,  has  been  superseded  in  Eng- 
land and  in  this  country  by  that  Avhich  Ave  now  call  military  law — a 
system  of  regulations   enacted  by  the  legislature   for  the  government 


of  the  military  forces.  No  other  martial  law  is  now  known  as  appli- 
cable to  the  government  of  the  army.  No  other  is  necessary,  for, 
instead  of  the  absolute  will  of  a  monarch,  we  have  a  system  of  rules 
carefully  digested  and  matured  by  experience. 

But  the  question  remains  whether  martial  law,  which  has  been  su- 
perseded in  its  principal  and  ordinary  field  of  operation  by  modern 
military  law,  may  be  still  put  in  force  in  its  secondary  and  extraordi- 
nary application  to  citizens  not  in  the  army.  If  it  can  be,  will  it 
still  have  its  ancient  effect  of  instituting  arbitrary  power  and  the 
jurisdiction  of  courts  martial  wherever  it  is  declared  ?  If  not,  what 
are  the  limitations  upon  it  ?    And,  finally,  by  whom  may  it  be  declared  I 

That  some  things  may  still  be  lawfully  done  which  were  done  three 
centuries  ago  under  the  name  of  martial  law,  cannot  be  denied.  For 
example,  the  writ  of  habeas  corpus  can  be  suspended  by  Congress  in 
certain  exigencies  by  virtue  of  a  clause  in  the  Constitution.  But  to 
suspend  that  writ  is  not  to  establish  martial  law  with  its  summary 
proceedings  and  absolute  power.  Although,  when  the  Avrit  is  sus- 
pended the  citizen  may  be  restrained  of  his  liberty,  he  can  be  tried 
and  punished  only  according  to  the  laws  of  the  land. 

A  military  commander  may  destroy  a  citizen's  house  when  it  be- 
comes necessary  for  the  safety  of  his  army.  In  a  proper  case,  the 
act  would  be  in  accordance  with  the  Constitution  and  the  laws,  for 
they  devolve  upon  the  commander  an  authority  and  a  duty  which,  in 
the  case  supposed,  cannot  be  performed  without  destroying  the  house. 
The  citizen  then  would  have  no  recourse  against  the  commander,  but 
must  look  to  the  Government  for  indemnity.  It  is  a  familiar  principle 
that  when  the  law  has  conferred  authority  upon  an  ofiicer  to  do  any 
act,  it  carries  equal  authority  to  do  whatever  is  necessarily  incident  to 
that  act,  notwithstanding  he  may  happen  to  injure  the  property  of 
another.  But,  in  every  case,  he  must  show  the  authority  of  the  law 
and  the  necessity  of  the  occasion. 

According  to  the  same  principle,  a  commander  occupying  a  town 
may  sometimes  restrain  the  egress  and  ingress  of  citizens  to  the  ex- 
tent necessary  for  the  safety  of  his  army,  or  he  may,  for  necessary 
cause,  interrupt  the  pursuits  of  the  citizens.  He  may  (especially  in 
a  war  like  the  present)  exert  many  other  unusual  powers  at  or  near 
the  place  occupied  by  his  force.  But  if,  by  any  such  exercise  of 
power  a  citizen  be  injured,  the  officer  must  justify  the  particular  act 
causing  the  injury  by  showing  that  this  very  act  was  necessarily  or 
properly  incident  to  the  authority  and  duty  devolved  on  him  by  the 
laws. 

Congress,  also,  by  virtue  of  the  powers  conferred  upon  it  by  the 
Constitution — such,  for  example,  as  the  powers  to  declare  war  and  to 
raise  armiei^ — may  authorize  acts  to  be  done  which  will  injcidentally 
injure  a  citizen  or  interfere  with  the  exercise  of  his  rights.  But  this 
is  justified  by  a  constitutional  principle,  and  not  by  a  suspension  of 
the  Constitution.  Every  such  law  must  stand  or  fall  alone,  and  be 
judged  according  to  the  constitutional  standard. 

All  this,  however,  is  very  diiferent  from  a  power  in  a  commander,  or 
in  the  President,  or  in  Congress  to  declare  martial  law,  and  then,  by 


virtue  of  martial  law,  to  exercise  arbitrary,  absolute  and  unlimited 
power.  According  to  the  constitutional  and  legal  principles  which 
have  been  stated,  the  government  can  exact  ample  powers  for  the  pub- 
lic defence,  Congress  ma}^  fulfil  all  its  constitutional  functions  and  a 
commander  may  perform  all  his  lawful  duties  without  danger  to  the 
public  liberty  or  unnecessary  injury  to  the  citizen.  But  if  Congress, 
or  the  President,  or  a  military  commander  may  first  determine  that 
martial  law  is  necessary  and  having  declared  it,  then  exercise  arbitrary, 
power  over  all  persons  and  things  within  the  district  subject  to  martial 
law.  every  injury  to  private  rights  and  public  liberty  will  be  justified 
by  a  stroke  of  the  pen  and  by  the  aggressor.  In  a  country  governed 
by  a  written  constitution  and  by  certain  laws  this  is  simply  impossi- 
ble. It  is  impossible,  therefore,  that  martial  law  in  its  ancient  and 
customary  sense  can  exist  within  the  Confederate  States.  Neither  in 
peace  nor  war  can  soldiers  be  subject  to  any  martial  law  inconsistent 
with  the  regulations  enacted  by  Congress  in  pursuance  of  the  consti- 
tution, nor  can  citizens  be  subject  to  any  power  inconsistent  with  the 
constitution  or  laws. 

But  this  may  be  conceded  and  yet  it  may  be  said  that  martial  law 
in  a  modern  and  modified  sense  can  be  established.  If  this  assertion 
leads  only  to  a  dispute  about  the  meaning  of  words,  it  is  insignificant. 
If  it  means  that  Congress  can  enact  regulations  for  the  government 
of  the  army  and  call  them  *'  martial  law ;"  or  can,  by  virtue  of  the 
constitution,  enact  laws  conferring  certain  powers  on  the  President  and 
call  them  ''martial  law;"  or  that  the  President  and  military  com- 
manders may  do  those  acts,  which,  in  time  of  war,  are  necessarily 
incident  to  the  duties  devolved  on  them  by  the  constitution  and  laws, 
and  call  this  "martial  law  ;"  the  assertion  may  be  suffered  to  pass  as 
unfit  for  contestation.  If  martial  law  can  go  no  further  than  this,  it 
leaves  us  to  judge  every  law  that  may  be  passed  by  Congress,  and 
every  act  that  may  be  done  by  the  President  or  a  military  officer,  by 
standards  which  are  well  known  and  universally  respected.  But  it  is 
superfluous  to  declare  martial  law  for  the  purpose  of  justifying  that 
which  is  authorized  already  by  the  constitution  and  laws  of  the  land. 
This,  however,  is  not  martial  law,  since  no  usage  has  attached  such  a 
sense  to  the  phrase  ;  but  it  is  something  else  which  may  be  arbitrarily 
styled  martial  law,  with  no  effect  but  to  make  confusion  and  uncer- 
tainty. 

If  it  be  meant  that  a  declaration  of  martial  law  has  some  other  ef- 
fect, not  so  broad  as  it  had  under  the  Tudors  or  yet  so  narrow  as  to 
keep  strictly  within  the  constitution  and  the  laws  of  the  land,  it  is 
wholly  unintelligible.  Nothing  can  be  more  repugnant  to  that  cer- 
tainty which,  in  the  laws,  is  essential  to  the  maintenance  of  right 
and  of  liberty.  Whatever  may  be  necessary  in  that  sense  should  be 
plainly  enacted.  If  the  President  or  a  military  commander  can  set 
up  a  vague  power  not  confined  by  law  nor  regulated  by  law,  he  may 
exalt  the  military  above  the  civil  authority  to  an  unknown  height. 

But  conceding  for  a  moment,  that  in  any  sense  martial  law  can  be 
established,  by  whom  can  it  be  established  ?  So  far  as  it  formerly 
related  to  the  government  of  the   army,  the  power  to  enact  it  is  dis- 


tinctly  vested  in  Congress  ;  for  the  constitution  expressly  grants  Con- 
gress the  power  '"  to  make  rules  for  the  government  and  regulation  of 
the  land  and  naval  forces."  So  far  as  any  authority  existed  to  extend 
martial  law  over  civilians,  it  pertained  by  the  ancient  common  law  in 
some  degree  to  the  king  as  one  of  his  prerogatives  for  governing  the 
nation.  In  modern  times  it  is  believed  that  whenever  a  necessity  for 
declaring  martial  law  over  any  district  is  apprehended  in  England, 
the  parliament  provides  for  the  exigency  by  a  statute  carefully  de- 
fining the  powers  to  be  exercised,  and  the  mode  of  exercising  them. 
Ever  since  the  bill  of  rights,  it  has  been  settled  in  that  country  that 
the  king  could  not  declare  martial  law,  and  no  kind  of  martial  law  has 
been  tolerated  except  that  which  is  authorized  and  regulated  from  time 
to  time  by  the  legislature. 

Under  our  Avritten  constitution  we  cannot  invoke  the  common  law 
to  determine  what  authority  belongs  to  our  government  or  what  is  the 
constitutional  distribution  of  political  power  among  its  great  depart- 
ments. Although  it  ma}^  be  true  that  at  common  law,  the  crown  had 
authority  in  certain  exigencies  to  subject  the  people  to  martial  law 
as  a  branch  of  royal  prerogative,  it  does  not  follow  that  either  our 
Chief  Executive  Magistrate,  or  Congress,  or  our  entire  government 
inherits  the  same  power.  The  President,  indeed,  is  by  the  constitu- 
tion "  commander-in-chief  of  the  army  "  and  as  such,  he  may  exercise 
all  authority  necessarily  incident  to  that  office  according  to  the  laws. 
But  his  authority  over  the  army  is  subject  to  the  regulations  enacted 
by  Congress  for  its  government,  and  his  authority  over  the  people, 
either  as  commander-in-chief  or  in  any  other  capacity,  is  subject  to 
the  constitution  and  to  the  laws  enacted  by  Congress  in  pursuance  of 
the  constitution.  He  can  exert  no  power  inconsistent  with  law,  and, 
therefore,  he  cannot  declare  martial  law  except  in  an  insignificant 
sense  which,  as  before  explained,  neither  adds  to  nor  detracts  from  the 
force  of  the  ordinary  laws. 

Since  it  has  long  been  well  settled  that  Congress  alone  can  author- 
ize a  suspension  of  the  writ  of  habeas  corpus,  it  might  have  been  in- 
ferred that  the  personal  liberty  of  the  citizen  can  never  be  invaded 
without  legislative  authority ;  and  the  truth  seems  axiomatic  that  the 
laws  can  be  suspended  only  by  the  law  making  power.  **  All  legis- 
lative powers  herein  delegated"  says  the  constitution,  ''  shall  be  vested 
in  a  Congress  of  the  Confederate  States."  Congress  is  also  '^  to  make 
all  laws  which  shall  be  necessary  and  proper  for  carrying  into  execu- 
tion "  all  powers  vested  by  the  constitution  '•  in  any  department  or 
office "  of  the  government,  including  the  President.  It  follows  that 
no  law  can  exist  by  authority  of  the  Confederate  States,  unless  it  be 
enacted  by  Congress.  Either  martial  law  is  properly  styled  law  or  it 
is  not;  if  it  is,  it  can  only  be  established  or  authorized  by  Congress; 
if  it  is  not,  it  is  lawless  power  and  cannot  exist  in  a  government  such 
as  ours.     The  supremacy  of  law  is  the  safeguard  of  liberty. 

The  Supreme  Court  of  the  late  Union  decided  that  a  certain  State 
legislature  could,  in  time  of  insurrection,  declare  martial  law ;  but  it 
lid  not  define  martial  law.  In  whatever  sense  it  may  be  declared, 
;;he  power  to  establish  or  authorize  it  seems  to  belong   exclusively  to 


the  legislature,  whether  of  a  State  or  of  the  Confederate  States.  The 
exigencies  for  which  it  is  designed,  the  considerations  which  determine 
its  propriety  and  the  results  to  which  it  tends  are  political  as  often  as 
military,  and  they  should  he  submitted  to  legislative  discretion.  We 
need  not  now  inquire  whether  any  State  legislature  has  other  powers 
in  this  regard  than  Congress  or  the  Confederate  government. 

When  our  forces  occupy  an  enemy's  country,  the  people  of  that 
country  are  not  shielded  against  military  authority  by  our  constitution 
or  laws.  The  commanders  or  the  President  as  commander-in-chief, 
being  intrusted  with  an  army  for  the  very  purpose  of  injuring  the 
enemy  and  being  unfestrained  with  respect  to  the  enemy's  people  by 
any  law  (except,  of  course,  international  law),  may  exercise  unlimit- 
ed authority  over  them.  Since,  in  such  circumstances  we  cannot  ad- 
minister any  other  law,  it  is  inevitable  that  under  the  name  of  martial 
law  or  otherwise,  the  will  of  the  commander  shall  stand  for  law  to  the 
inhabitants  under  his  military  power. 

But  as  to  our  own  citizens  and  within  our  own  country,  no  author- 
ity in  the  name  of  the  Confederate  government  ought  to  be  tolerated, 
except  that  which  is  regulated  by  the  constitution  and  laws.  If  mar- 
tial law  over  the  people  be  necessary  in  any  case  it  should  be  regula- 
ted and  defined  in  a  sense  consistent  with  the  constitution  by  distinct 
enactments.  But  since  the  phrase  "  martial  law  "  is,  at  best,  am- 
biguous and  since,  by  reference  to  ancient  usage,  it  may  convey  ideas 
dangerous  to  liberty,  it  is  wiser  in  our  legislation  to  substitute  for  it 
such  positive  regulations  as  may  be  deemed  necessary. 

The  committee  therefore  recommend  that  the  act  of  February  27, 
1862,  be  suffered  to  expire,  and  that  a  bill  and  resolutions  herewith 
presented  be  adopted. 


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